If Photography Is Not a Crime, When Will Police Get the Message?

In February, just as the City of Baltimore was hammering out a legal settlement to end police interference with photographers, Baltimore police forcibly removed a Baltimore Sun photo editor from the scene of a shooting on a public street. That action underscored a seemingly intractable problem: getting the message to rank-and-file police officers that people have a constitutional right to photograph police carrying out their duties in public.

Judges have repeatedly thrown out criminal charges against photographers arrested while photographing police activities in public. Cities have had to pay to settle claims of civil rights violations stemming from some of the arrests. The City of Boston, for instance, agreed in 2012 to pay $170,000 to settle a videographer’s civil rights claims over his arrest for videotaping police arresting another person on the Boston Common. Baltimore ended up paying $250,000 as part of its recent settlement with Christopher Sharp, who alleged that police erased the videos on his iPhone after detaining him for using the iPhone to record the arrest and beating of another person.

And yet the incidents of police interference with photographers continue apace. No sooner is one case settled, when another incident or claim pops up.

“It certainly is like playing a game of whack-a-mole,” says attorney Mickey Osterreicher of the National Press Photographers Association.
Attorney Mary Borja, who represented Sharp in his claim against Baltimore police, says: “In a post-9/11 world, there’s a lot of, ‘Well, it’s the Patriot Act,’ which is the crutch [police] use to justify improper activities that interfere with journalists doing their jobs.”

There are, to be sure, narrow limits on the right to photograph police. Photographers are not allowed to get in the way or otherwise interfere with the work of police. But photographers are seldom prosecuted successfully for actual interference. The arrests are more often made to prevent photographers from witnessing police activity. Charges end up being dropped, and civil claims ensue.

Several new claims by photographers (or citizens with cameras) have cropped up in recent months.

In Ohio, the Toledo Blade filed a lawsuit April 4 against the US Secretary of Defense and several military police, alleging unlawful detention and violations of First, Fourth, and Fifth Amendment rights of two of its journalists. Photographer Jetta Fraser and reporter Tyrel Linkhorn were detained and questioned March 28 in Lima, Ohio outside the Joint Systems Manufacturing Center, a manufacturer of tanks and other armored military vehicles, after they photographed the facility from a public way.

Military police allegedly threatened the journalists, and confiscated Fraser’s cameras and deleted the photos. They told the journalists they had violated unspecified federal laws “and army regulations” by photographing the facility. (The Columbia Journalism Review speculates convincingly about which law the army is likely to cite in its defense against the Blade’s First Amendment claims.)

Earlier this year, photographer Steve Eberhard of Willits, California filed suit in state court against the California Highway Patrol and Caltrans, the state transportation agency, over his arrest last summer while photographing a protest against a controversial highway bypass project. Eberhard, who was eventually released without any charges filed against him, is alleging violation of his civil rights, among other claims.

In New Haven, Connecticut, Luis Luna, a medical interpreter, filed a $500,000 civil rights claim over his arrest in 2010 while recording police activity with his iPhone. He was charged with interfering with a police officer. Police confiscated his iPhone, which was returned with the videos erased. Luna contested the interference charge, but lacking legal representation, finally agreed to plead guilty to a lesser charge of “creating a public disturbance.” A police investigation later concluded that he hadn’t committed any crimes, and his civil rights had been violated.

In Maryland, veteran photojournalist Mannie Garcia is suing Montgomery County and several of its police officers for unlawful arrest and violation of his First and Fourth Amendment rights. The claim stems from Garcia’s rough arrest in June, 2011 on disorderly conduct charges after he photographed police arresting two men with what Garcia considered to be excessive force. Garcia didn’t interfere with the police, and the charges against him were eventually dropped. But police never returned his camera card, which they had confiscated at the scene.

Other cases have settled in favor of photographers. Besides those mentioned from Boston and Baltimore, the Washington, DC Metropolitan Police Department issued a general order as part of legal settlement in 2012 stating that “a bystander has the right under the First Amendment to observe and record [DC police officers] in the public discharge of their duties.”

The Department of Justice has weighed in on several cases–including the Washington, DC case, the Sharp case, and the Mannie Garcia case–urging the courts to protect the free speech and due process rights of photographers, as well as their rights to protection against unlawful search and seizure.

In fact, the Department of Justice submitted a a blueprint for police policy that became the basis of settlements in the Washington, DC and Baltimore cases: police policy and procedure were re-written in both places to comply with DOJ guidelines.

So why do photographers continue to get arrested for doing their jobs, or simply exercising their constitutional rights?

There aren’t easy answers. Perhaps police are getting the message, and arrests and intimidation would be much worse if photographers (and citizens) weren’t using the courts to push back by asserting their constitutional rights.

Mary Borja, the attorney who represented Sharp in his successful claim against Baltimore police, says she’s heard of incidents since the settlement where citizens have stood up to police who tried to prevent photographs of police activity. She believes publicity about the settlement is helping to get the message to Baltimore police, and reduce interference.

But there’s more work to do, she says. Regarding the police interference with the Baltimore Sun photo editor while settlement talks in the Sharp case were under way, Borja says, “That highlights the need or police training on what you can and can’t do.”

Borja also says that police interference with photographers will never be completely eliminated. “Police make mistakes, regardless of whether training has been given or not.”

Osterreicher, the NPPA attorney, says changing police attitudes and responses toward photographers “is going to take continuing education.” And he surmises that as more police start using wearable cameras to document their activities and interactions with the public, “their attitude toward [citizens and journalists] doing the same may change.”

For now, though, the courts remain an important line of defense for the right of photographers to photograph police carrying out their duties in public.

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